Opinion
November 17, 1958
John D'Apice for petitioner.
Fink Pavia for widow.
Harry G. Herman, County Attorney, for Department of Public Welfare of the County of Westchester.
In this contested accounting proceeding a question has been raised as to the right of the administrator to pay debts of the decedent and administration expenses, including attorney's fees, since it is alleged that such payments consume a portion of the $1,000 exemption set aside for the benefit of the surviving spouse under section 200 of the Surrogate's Court Act. The objectant has not raised any question with respect to the payment of funeral expenses since subdivision 4 of section 200 of the Surrogate's Court Act expressly provides that where there are "insufficient assets in the estate to pay the reasonable funeral expenses of the decedent" such expenses may be paid from the exempt property fund.
The objections raised with respect to the payment of debts from the exempt property fund are sustained since the law is clear and unequivocal with respect to this issue and provides that exempt property vests in the surviving spouse at the date of death and does not constitute estate assets. ( Matter of Hallenbeck, 195 N.Y. 143; Crawford v. Nassoy, 173 N.Y. 163; Matter of McNamara, 138 Misc. 526.) Accordingly, the one creditor who has already been paid and who has been joined as a party to this proceeding, is directed to repay to the administrator the moneys received. (Surrogate's Ct. Act, § 267.)
It is well established that in settling an estate, administration expenses have priority over funeral expenses and therefore must be satisfied first. (Surrogate's Ct. Act, § 216; Matter of Tangerman, 226 App. Div. 162; Matter of Schoenfelder, 161 Misc. 654; Matter of Rothstein, 151 Misc. 466. ) After payment of administration expenses in the amount of $223 and after setting aside the sum of $29.90 to provide for the allowance of commissions, there remains in the estate, exclusive of the $1,000 exemption, the sum of $345.19. The balance of the estate assets is to be applied in satisfaction of the funeral expenses, which the court finds to be reasonable. The unpaid portion of the funeral expenses is payable from the exempt property fund in accordance with subdivision 4 of section 200 of the Surrogate's Court Act.
Proceed accordingly and settle decree.